The second paper is by Pamela Samuelson, and it discusses (again, quite accurately) the coming power grab by "copyright maximalists" via the DMCA, entitled The Copyright Grab. It clearly saw the intention of the DMCA to remove user rights, and grant highly questionable additional rights and powers to copyright holders in an online world. Samuelson lays out many concerns about where this is headed -- including how these proposals appear to trample certain fair use rights -- and in retrospect, her fears seem to have been backed up by history. Samuelson, by the way, has just written a new paper that is also worth reading pointing out how ridiculous current copyright statutory rates are -- an issue of key importance in the ongoing Tenebaum lawsuit, which (thankfully) the judge in the case is going to consider.

O'Toole's post about both of these papers is quite interesting, and he then points out a third paper, on which Samuelson based her paper. It outlines the copyright maximalists' plans for blocking the use of new technologies to share content -- including a segment on the importance of "education." O'Toole suggests that this education component never really happened, and that's why copyright infringement via file sharing is so common today. He argues that it's this lack of education that makes people think that file sharing does little to no harm.

While this might sound good on first pass, I'm not convinced that's really the case. The industry has been running an education campaign for years that has done nothing to slow down or stop file sharing. It's not that people aren't "educated." In fact, suggesting that is somewhat insulting. It's that people are educated enough to recognize that accessing/listening/watching/sharing content is a perfectly natural activity that, by itself, isn't doing any harm. Sure, when combined with a bad business model, it can do plenty of harm -- but more and more people intuitively recognize that the file sharing, by itself, is not the problem. The business model is the problem. So, no, it's not about "education." No education in the world is going to convince people that something they see as a square is really a circle.

Reader Comments

Education?

"While this might sound good on first pass, I'm not convinced that's really the case. The industry has been running an education campaign for years that has done nothing to slow down or stop file sharing."

You mean those education campaigns were they blame "content piracy" for everything from terrorism to male pattern baldness . . . yeah surprisingly they didnt work that well?

Re: Education?

Precisely...

It's a principle called "Cognitive Dissonance" and it's made the general public disregard even decent arguments. They keep telling us stuff that is demonstrably untrue and then they cry foul when we ignore their 1 in 100 statements that's true.

Are the studios, labels or developers making less money? Not in any 1:1 measurable fashion, much less to the tunes of the hundreds of millions they claim. For every user of the content who didn't pay because they'd had a pirated copy, there's another user who previewed a pirated copy and then paid for a legit one.

Only quoting the ending, but the speech as a whole is a very good read

"I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living. If I saw, Sir, any probability that this bill could be so amended in the Committee that my objections might be removed, I would not divide the House in this stage. But I am so fully convinced that no alteration which would not seem insupportable to my honourable and learned friend, could render his measure supportable to me, that I must move, though with regret, that this bill be read a second time this day six months."

Re:

Give me a break

"It's that people are educated enough to recognize that accessing/listening/watching/sharing content is a perfectly natural activity that, by itself, isn't doing any harm. Sure, when combined with a bad business model, it can do plenty of harm -- but more and more people intuitively recognize that the file sharing, by itself, is not the problem."

Give me a break, Mike. People don't care about copyright laws because they want free content and there is relatively little risk of getting caught. To be sure, there are some people who download infringing content as a form of protest, but they are a fractional minority. The vast majority of people realize that when they download copyrighted material, they are doing something improper.

You constantly mention that value is not the same thing as price. Your implication is that people who do not utilize a business model you approve of deserve whatever comes to them; in essence, these people don't deserve to reap the value of their work. Maybe the bottom line is that you think copyright should be completely eliminated. If that is the case, you should be more forthright with your opinion.

I am totally on board with the fact that the democratization of content is a reality and that it is stupid for content owners not to accept it and to adjust their business models accordingly. However, you are no better than the RIAA when you whitewash reality to fit your agenda.

Re: Give me a break

Re: Give me a break

"The vast majority of people realize that when they download copyrighted material, they are doing something improper."

I will allow that downloading copyrighted material is (usually) illegal. That doesn't mean that copyright law is reasonable. In fact it can be easily argued that copyright as it stands is unreasonable. If a law is unreasonable or against a natural order it will not be followed. It's just that simple.

Gambling, drug use, and artificial monopolies are all instances where government has legislated in a manner that goes against a natural order. Good, reasonable, law abiding citizens will land on the wrong side of these laws not because they are bad people, but because the laws are wrong.

So, yes, you are right that most people know that they are acting illegally, but I would argue that most do not feel they are acting immorally.

Re: Re: Give me a break

Downloading copyrighted content is usually _not_ illegal. In fact all content which was created since the 1920's is copyrighted.

What you mean to say is that making non-private copies of copyrighted works in a way not allowed by the _license_, is illegal. And that's true. It certainly covers most of the activity on services like Napster, and lots of P2P copying.

Re: Give me a break

Give me a break, Mike. People don't care about copyright laws because they want free content and there is relatively little risk of getting caught. To be sure, there are some people who download infringing content as a form of protest, but they are a fractional minority. The vast majority of people realize that when they download copyrighted material, they are doing something improper.

I disagree. I wasn't saying most do it as a form of protest. I think most do it because they want to hear music, or they want others to hear music they like. It's not about "getting it free." It's about the convenience of it.

You constantly mention that value is not the same thing as price. Your implication is that people who do not utilize a business model you approve of deserve whatever comes to them; in essence, these people don't deserve to reap the value of their work.

No, that's a moral statement. It's not about "deserves." It's about REALITY. If you are trying to sell buggy whips today, you're not going to have a very big business. That's just a fact.

Same is true if you pick the wrong business model with music.

However, you are no better than the RIAA when you whitewash reality to fit your agenda.

I'm not the one whitewashing reality.

It's simply a fact that most people don't think file sharing is that bad. If they did, their own moral clocks would stop them from doing it. It's got nothing to do with "oooh, free!" as much as it has to do with "what's so bad about this?"

Re: Re: Give me a break

I appreciate the response, Mike. I think the dialogue you maintain on this site is of real value. It's good to question one's own conclusions, and I often find that happening when I read your posts and the discussions in the comments section.

I am not sure I entirely buy into your convenience argument. It is true as it relates to physical CDs, no doubt. Nowadays, nobody (ok, very few people) wants to go into a brick and mortar store, or wait for Amazon to send them cds. However, I am not sure that the facts fully bear out your claim. Is it not much easier and more convenient to buy music through legal, online means such as Itunes? If it were really all about convenience, then the emergence of legal online options would have put a serious dent into the unlawful downloading market. I think, in this respect, you are whitewashing reality. I think it's a very difficult claim to make that, on balance, people who download music unlawfully do so because it is more convenient.

I realize you may not get around to responding to this, but I was wondering if you'd care to share your views on copyright in general. Are you opposed to it all together?

Thanks again, Mike. The last thing I want is to be regarded as another Weird Harold. I hope that my comments do not come off as an attempt to troll. It really isn't my intent. It just so happens that this is an area of law that I'm truly fascinated by, and I think that the issues are a bit more nuanced than most people seem to believe.

Re: Re: Re: Give me a break

CT,

Disagreeing is not trolling. No one has any problem with those who discuss/disagree intelligently. We may questions your assumptions (as you are questioning mine), but that's quite different than trolling.

I really don't have time to respond in detail, but I'd argue that the very fact that so many people do buy music via iTunes undermines your point. For many that is convenient. For many others, however, the alternatives are more convenient.

As for my views on copyright, they're quite straightforward: I think that monopolies tend to be bad for everyone, limiting the overall market. I think that copyright law, on the whole, has been a pretty massive mistake for the country. That said, I'm open minded enough to say that I'm willing to see proof to the contrary. But, on the whole, I think that if you are getting a gov't granted monopoly, their ought to be a burden of proof on the content creator to explain why that monopoly is needed, rather than just handing the monopoly to them.

Re: Re: Re: Re: Give me a break

I really don't have time to respond in detail, but I'd argue that the very fact that so many people do buy music via iTunes undermines your point. For many that is convenient. For many others, however, the alternatives are more convenient.

Those alternatives are only more convenient because they do not cost any money. I have a hard time believing that illegal downloading is more convenient than downloading from iTunes or Amazon.com for anyone that is not concerned about price.

Re: Re: Give me a break

My two cents -

(Let it be known I'm not a lawyer nor law student, I'm just an average Joe that stumbled upon this blog while browsing /.)

When Napster first hit the scene (mid-90's?), I was all over it. I loved it, and didn't really feel there was much harm in using it. I believed then, and still do today that (A)I spent more money on music purchases than I would have without it, and (B)'stealing' by definition requires that the original owner be deprived of his/her product. If I somehow acquire a duplicate of the product, I haven't stolen from them.

I have a reasonably large music library - about 400 cassettes, few of which were purchased, about 200 LPs, and about 620 CDs, all of which were purchased.

When Napster was shut down, I found that trying to find and download music from the 'Net was inconvenient and time-consuming, and I rarely did so. During that period my music purchases slowed as well, for whatever that's worth.

When iTunes came around, I resumed my online downloading of music. It was worth $0.99 to me to be able to very easily find and download the music I wanted, and I only resorted to file-sharing techniques if iTunes didn't carry the song I sought.

Once Amazon began offering the tracks DRM-free, I started getting my MP3s from them, and haven't looked back.

For me, the convenience of a legit store is worth $1 or so per song.

As for downloading entire albums, I prefer to have a physical copy, with professionally produced packaging - liner notes, artwork, etc..., and will continue to purchase CDs I like as long as they are mass-produced.

If the copyright-police make it more difficult to obtain the files online, legitimately, I'll see no motivation to purchase, as opposed to downloading from a peer-to-peer network.

Speaking for myself, I'm happy with my inexpensive and DRM-free tracks from Amazon, and can tolerate the current environment.

Re: Give me a break

People don't care about copyright laws because they want free content and there is relatively little risk of getting caught. To be sure, there are some people who download infringing content as a form of protest, but they are a fractional minority. The vast majority of people realize that when they download copyrighted material, they are doing something improper.

Do people believe this because they are aware that they are doing something wrong or because they have been educated by the publishers (who own all the news outlets) to believe they are doing something wrong?

To what degree do people share this information for the purpose of communication? For instance, if Alice tells Betty about a song she likes, would Betty be able to discuss the song intelligently with Alice if she had not heard the song? It might not be something she would value enough to buy, but she might need to listen to it. In the real world, Alice would play the song for Betty, and that would be the end of it. No one would think Alice had done anything wrong by playing the song for Betty. On the Internet, though, Betty and Alice could both be subject to harsh legal action. So, why are they right in the real world and wrong on the Internet? Are they not just having a conversation? Are conversations not protected Free Speech?

Your post also obscures the issues. It follows the assumption that people who download are "stealing" or at least doing something inappropriate and should feel guilty. I doubt most people have considered it. If you click on a MySpace page that plays music, you are not going to think that you are a "pirate" listening to an illicit public performance of a copyrighted work without authorization. But nine times out of ten, that is exactly what it is. You did not decide to download the song, but your computer violated the law for you. How do you expect ordinary people to differentiate this from actively downloading a song from somewhere on the Internet? Perhaps 90% of the images on personal websites are technical violations of copyright, but you do not see people demonstrating remorse for that, either.

the origiin of morals

although i agree with 90% of Mike's posts, I must take issue with this one.
"It's that people are educated enough to recognize that accessing/listening/watching/sharing content is a perfectly natural activity that, by itself, isn't doing any harm. Sure, when combined with a bad business model, it can do plenty of harm -- but more and more people intuitively recognize that the file sharing, by itself, is not the problem"
Mike has overstated the thoughts of those doing the file sharing. No one I know is thinking that bad business models are causing harm when they are file sharing. They just don't care. The act is completely removed from any harm it might be causing and is so easy and ubiquitous that file sharing has become a white lie of sorts. If you were to ask the file sharers - "is this wrong?' when they download copyrighted material, they would all almost certainly respond that it is on some level. But you would get the same response about speeding. Because any harm caused is so far removed from the act and the that act is accepted by your peers, it is socially and culturally allowed. An ideal governing body would recognize the cultural norms of its citizens and base its legislative system on those premises. We lost that a long time ago though, if we ever had it.

Re: the origiin of morals

"No one I know is thinking that bad business models are causing harm when they are file sharing. They just don't care." Actually, it's probably the entire reason I pirated music in college. I had no issue buying DVDs but I found CD's way too expensive. And there was no way in hell I was supporting DRM-ed music, so I downloaded it. Now that there are drm free places to get music, I buy it.

Copyright Education

I have a 15-year-old, and neither he nor any of his generation seem to have any concept of digital copyright. The content industry has entirely failed at educating the masses, and their ultimate demise is completely assured. You can't put 90% or even 30% of the people in jail. We learned that during prohibition. If everyone is breaking the law, the law must be struck down.

Sorry, copyright maximalists, but you will fail under the weight of the masses!

Re: Copyright Education

The content industry has entirely failed at educating the masses

But can you really say that they've failed if what they were trying to do was impossible in the first place? I think the point is that, even if the content industry had funded the largest "education" campaign in the history of the universe, your 15-year-old's reaction to digital copyright would still be "meh".

That Samuelson paper is great. It was either this paper or another one but I remember citing a few Samuelson works for papers I had to write in college. Funny to see all the foresight as a lot of these predictions have come true.

Re: Education sure failed

Would it be simple enough - and accurate - to rephrase it as:
Receiving something for free - which was intended for monetary purchase - against the wishes of the seller is (usually) illegal.
"Back in the day" did we go through the mental exercise thoroughly enough to realize that the mix-tape that we were making on our dual-deck boom-boxes was illegal?
I'm smart. I could read the liner notes and understand what it meant by "unauthorized duplication of this work is expressly prohibited", but that never slowed me down and many mix-tapes were made.

Legal downloads vs. piracy

Until recently it was difficult to buy digital music without DRM. As a result I bought the CD or I didn't buy it at all.

Now I can buy from iTunes with no DRM...I have bought several "cd"'s. Those are a direct result of the music industry dropping DRM. You see the extreme convienance of clicking a button and getting my music and the lower than store CD prices equals quick and easy pure profit.

I don't like that copyright is so long. I believe it should be much, much, much shorter...however, I fully support copyright as a mechanism that allows artists of all types to earn a decent living from their work.

Still I object to the length of the protection.

Likewise, I will not purchase pictures of my family from a photographer unless they give me rights to the images. What is the point to that? I will gladly pay a photographer for his time if they do a good job but the image is of my family...what use is that to them...they just want more money for doing nothing...which is stupid. Does a plumber charge me based on how much water flows through the pipes? Of course not.

I'm sick of copyright abuses.

If I have a device that can record a concert that I paid good money to attend...then I should be able to record that concert or if I want to take video of a movie I paid to watch....how does that violate anyones rights...but I can go to jail for doing either of those things.

I'm not talking about recording it and making it available...I'm talking about recording it and watching it again on my own.

If my memory was perfect, I would be able to play watch it again....but my memory isn't and I might want to watch something again. I should be able to...I already paid for the right to watch it.

I don't do these things....but I should have the right to. Better yet would be if on the way out I was offered the ability to buy a copy of a concert on CD or dvd of a movie....for some reasonable price so I didn't have to hassle with recording it. Reasonable is $7 or less here folks.

They would make even MORE money. They need to start thinking and stop whining.

Cut copyright and patents to 10 years max or less if they stop selling it commercially. (Think abandonware)

The law as it stands is dumb and unbalanced. Copyright was intended to be used to provide a temporary protection for profits. Since the speed of adoption and profit are so much faster than they were at the time the laws were created the law should be SHORTER not LONGER (and longer and longer...)

I will buy something if the price is sufficiently low and the copyright limitations are reasonable.

IE:
- DRM free music
- games for the iPhone/iPod Touch (these are both cheep and legally usable on every device I own). Dozens and dozens of games and applications from big companies and one man shops...if it was the same price but I had to pay for each device I own...I would only have bought a couple...maybe...and I wouldn't have bought the 2nd and 3rd devices at all (iPhones)...
- rent a movie (from Netflix or Redbox

I'm not their worst enemy...but I'm not the content providers friend either. I want things to be *FAIR*. I want a *BALANCE* to their rights. I want them to be able to become rich but not lazy in their work.

Perhaps the value of profit that someone can obtain through a copyright should be limited to 100 times the fair value cost. IE: Labor + expenses for production. How about that one. Fair value could be average pay over the time period where work was done on the songs.

Imagine that. A world where they need to justify their copyright. That would be great.

It took you 4000 hours of people time to make a CD at a national average salary of $50/hour (taxes + benefits...estimated HIGH) that's a max of $200k of profit. After copyright is gone...you can still sell it....but I can also ask my friend for it free.

The prices on music should drop with online delivery *significantly* but they have not. There is something wrong with that.

Re: Legal downloads vs. piracy

Oh...and one more thing...

Right now these same people that have become filthy rich off of the abuse of copyright are pitching a fit about having a disproportionate amount of tax on their obscene wealth while people who don't have enough savings to make it a month without working worry that they might get sick and be financially destroyed.

In the end, there is a new medium that the people want to use, so why don't the companies, those who were made powerful BY the consumer, cater to the customer instead of trying to fight it. You've basically got the masses telling these companies where to put their content.

Copyright? Copyleft!

People fail again and again to understand. This is the reason iTunes works. iTunes is easy to use, fast and cheap. you pay about a dollar for a song, can listen while it streams to you and can then copy to your iPod.

If companies such as the ones that are 'losing money' and 'potential sales' from pirating were to change their business model they would be able to tap the new and vast market that iTunes is tapping and making a killing from. Maybe if they could learn to adapt rather than fear every new change and technology we would have a better economic system for music and artists in general.

One new system i have heard about is where you pay 50c for the music and donate as much as you think you should to the artist. this means people will be more honest with ratings as they will back them up with cash.